Perry et al v. Alabama Alcoholic Beverage Control Board et al

Filing 189

MEMORANDUM OPINION AND ORDER: it is ORDERED as follows: (1) Dft's 185 motion for relief from mandate is DENIED; (2) Dft's 185 renewed motion for summary judgment is DENIED; (3) Dft's 185 alternative motion for discovery is GRANTE D; (4) This case is set for trial on the term of court commencing 9/18/2017, and the pretrial conference is set on 6/29/2017; (5) The parties shall file a joint report on or before 4/14/2017, containing their discovery plan. Signed by Chief Judge William Keith Watkins on 3/30/2017. (furn: calendar, ar) (SET PTC for 6/29/2017; Jury Trial for 9/18/2017) (Attachments: # 1 Civil Appeals Checklist) (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
KESIA J. PERRY,
Plaintiff,
v.
ALABAMA ALCOHOLIC
BEVERAGE CONTROL
BOARD,
Defendant.

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CASE NO. 2:11-CV-464-WKW
[WO]

MEMORANDUM OPINION AND ORDER
This action is before the court on the mandate of the Eleventh Circuit Court
of Appeals. On appeal from summary judgment entered in favor of the employer on
all federal discrimination claims brought by former employees, including Kesia J.
Perry (“Perry”), the Eleventh Circuit affirmed in part and vacated and remanded in
part. One plaintiff (Perry), one defendant (the Alabama Alcoholic Beverage Control
Board), and one claim (Title VII retaliation) remain.

The Eleventh Circuit’s

judgment has issued as mandate; however, the ABC Board has filed a motion
insisting that the mandate does not constrain this court because Perry did not plead
the Title VII retaliation claim in the controlling complaint or argue the theory in the
district court. The Alabama Alcoholic Beverage Control Board (“ABC Board”) also

moves for summary judgment on the Title VII claim, asserting that this claim “was
never a part of this lawsuit.” (Doc. # 185, at 39.) Alternatively, the ABC Board
contends that, if this court permits the claim to go forward, then it is entitled to
discovery. Perry, who now is proceeding pro se, filed a response in opposition. For
the reasons that follow, the motion is due to be denied.
I. BACKGROUND
It is helpful to begin by sketching briefly the litigation (and lack thereof) in
the district court surrounding the Title VII retaliation claim that the Eleventh Circuit
has held survives summary judgment. The claim is that the ABC Board retaliated
against Perry for filing this lawsuit by promptly reassigning her a new supervisor,
Andy Knight, who subjected her work to heightened scrutiny. A Title VII retaliation
claim predicated on Knight’s alleged retaliatory supervision of Perry is not in the
operative second amended complaint for the obvious reason that his supervision of
Perry post-dates the amended pleading’s filing and, thus, had not yet occurred.
While the operative complaint does set forth a Title VII retaliation claim, that claim
does not allege that the filing of this lawsuit is the protected activity for which Perry
suffered adverse action. At no time did Perry file a motion in the district court to
amend the second amended complaint to add a Title VII retaliation claim based upon
Knight’s alleged post-lawsuit retaliatory conduct, as this circuit generally requires.
See Brown v. Snow, 440 F.3d 1259, 1266 (11th Cir. 2006) (holding that a Title VII
retaliation claim was not properly before the court because, although the plaintiff
2

“had not been fired when he filed his complaint, [the plaintiff] never amended his
complaint to include a claim of retaliation based on his termination”).
Notwithstanding the nonexistence of the Title VII retaliation claim in Perry’s
pleadings, evidence to support it is in the summary judgment record. During the
discovery proceedings, Knight was deposed. Topics of questioning at his deposition
included his supervision of Perry, his undisputed contemporaneous knowledge of
Perry’s lawsuit, his superior’s implied directive to “get rid of” Perry, and his
superior’s ensuing praise when Knight fulfilled that directive. (See Doc. # 102-19;
Doc. # 121-10.) By affidavit and at her deposition, Perry also reiterated the
chronology of Knight’s supervision over her. (Doc. # 122-1, at 17–18 (Pl.’s Aff.);
Doc. # 121-1 (Pl.’s Dep.).) Perry testified that she believed that the reassignment of
Knight as her supervisor and the discipline he doled out (e.g., a counseling form)
were retaliatory. (Doc. # 121, at 81, 85.) Moreover, the ABC Board submitted
excerpts of Knight’s deposition in support of its motion for summary judgment, and
those excerpts focused on the particulars of Knight’s supervision of Perry.1 (See
Doc. # 102-19, at 1–38.)
The parties’ summary judgment briefs also included factual recitations of
Knight’s post-suit supervision of Perry. In particular, the ABC Board acknowledged
that Perry’s lawsuit was a protected activity (Doc. # 104, at 19–20, 51) and noted

1

In its current briefing, the ABC Board stresses that the inclusion of these facts was for
context only.
3

(and then rebutted) the testimony of Knight that “he believed he was put in place to
essentially retaliate against Plaintiff” (Doc. # 104, at 24). In her brief opposing
summary judgment, Perry also highlighted the circumstances of her job under
Knight’s supervision. (Doc. # 120, at 27–31.) But Perry did not categorize the
evidence of Knight’s close supervision that followed on the heels of this lawsuit as
a discrete act of retaliation that supported an independent Title VII retaliation claim.2
Perry instead framed the evidence around a retaliatory hostile work environment
claim (Doc. # 120, at 27–31, 47, 52), a claim that, ironically for the ABC Board, the
district court rejected because Perry had not “move[d] to amend to add such claim.”
(Doc. # 156, at 52–53.) The district court’s opinion on summary judgment also does
not analyze a separate Title VII retaliation claim that Knight’s post-lawsuit
supervision of Perry was an act in retaliation for filing a lawsuit, and understandably
so.3
On appeal of the adverse summary judgment ruling, for the first time, Perry’s
attorney expressly raised a Title VII retaliation claim premised on Knight’s postlawsuit supervision.4 Perry explained that, in July 2011, after having learned of

Other actions, such as Perry’s suspension in 2012, also fell outside of the temporal scope
of Perry’s pleadings, but were discussed and argued in the summary judgment briefing, without
mention of their omission in the operative complaint.
2

3

The undersigned was not the trial judge but received this case on reassignment after the
mandate issued.
4

Perry retained new counsel for her appeal. After remand, counsel was permitted to
withdraw.
4

Perry’s lawsuit, Human Resources Manager (Stan Goolsby) reassigned Knight to
supervise Perry and instructed him “to keep a close watch on [her] and to use
progressive discipline if necessary.” (Doc. # 185-1, at 10–11.) Goolsby conveyed
to Knight his belief that Perry “would either hang herself or she would become so
upset that she would quit.” (Doc. # 185-1, at 10–11.) Formulating her claim on
appeal, Perry argued that Goolsby’s directives to Knight, which occurred one month
after she filed her lawsuit, and the ensuing disciplinary actions Knight imposed on
her supported a Title VII retaliation claim. (Doc. # 185-1, at 27–28.) The ABC
Board countered that Perry’s failure in the district court to raise a claim that “her
placement under Andy Knight’s direction constituted an act of retaliation” amounted
to a waiver, but that, alternatively, Knight’s supervision of Perry was not an adverse
employment action. Perry, No. 13-14897-E (11th Cir. Feb. 12, 2014) (Appellee’s
Br., at 55–56).
Opining that “Knight’s close supervision of [Perry] was an act of retaliation,”
the Eleventh Circuit held that “a genuine issue of material fact exist[ed] as to whether
the ABC [Board] retaliated against Perry after she filed her lawsuit.” (Doc. # 174,
at 21, 25.) It reasoned that, “[b]ased on the close temporal proximity between the
filing of Perry’s complaint and the subsequent disciplinary activity, a reasonable jury
could conclude that Perry would not have been closely watched and then disciplined
by Knight in the absence of her protected activity.” (Doc. # 174, at 25.) The
Eleventh Circuit described the “disciplinary activity” as embracing (1) Knight’s
5

counseling of Perry concerning her “punctuality, cooperation with coworkers, and
compliance with the ABC Board’s rules,” (2) a written reprimand, and (3) a
suspension. (Doc. # 174, at 24–25.) Accordingly, the Eleventh Circuit “reverse[d]
and remand[ed] with respect to Perry’s retaliation claim.” (Doc. # 174, at 25.) The
decision did not mention the ABC Board’s waiver argument.
After the Eleventh Circuit’s reversal, the ABC Board petitioned the Eleventh
Circuit for rehearing or rehearing en banc. The ABC Board argued that, because
Perry did not amend her complaint to include discrete acts of retaliation occurring
after she filed her lawsuit, a Title VII claim premised on alleged post-lawsuit
retaliation was outside the scope of Perry’s litigation. The ABC Board emphasized
that “[t]he panel decision predicated the entire surviving retaliation claim on factual
events that occurred after Perry filed this lawsuit.” Perry v. Ala. Alcoholic Beverage
Control Board, No. 13-14897-E (11th Cir. Oct. 20, 2015) (Pet. for Reh’g). The
Eleventh Circuit summarily denied the petition for rehearing and entered the
judgment as the mandate. The ABC Board has filed the present motion for relief
from the mandate and for summary judgment on the remanded claim or,
alternatively, for leave to conduct additional discovery.
II. DISCUSSION
Upon receipt of the mandate, the district court “may not alter, amend, or
examine the mandate, or give any further relief or review, but must enter an order in
strict compliance with the mandate.” Piambino v. Bailey, 757 F.2d 1112, 1119 (11th
6

Cir. 1985); see also Cox Enters., Inc. v. News-Journal Corp., 794 F.3d 1259, 1271
(11th Cir. 2015) (accord). The district court must “implement both the letter and the
spirit of the mandate taking into account the appellate court’s opinion, and the
circumstances it embraces.” Piambino, 757 F.2d at 1119 (internal citations omitted).
“Although the trial court is free to address, as a matter of first impression, those
issues not disposed of on appeal, it is bound to follow the appellate court’s holdings,
both expressed and implied.” Id. Hence, the mandate rule “ban[s] courts from
revisiting matters decided expressly or by necessary implication in an earlier appeal
of the same case.” AIG Baker Sterling Heights, LLC v. Am. Multi-Cinema, Inc., 579
F.3d 1268, 1270–71 (11th Cir. 2009).
Relying on a narrow exception that relieves a district court from complying
with a mandate where the decision is “clearly erroneous and would work manifest
injustice,” United States v. Amedeo, 487 F.3d 823, 830 (11th Cir. 2007) (citation
omitted), the ABC Board insists that the mandate rule does not constrain this court.
Unfortunately for the ABC Board, a close look at the mandate’s implicit ruling (Part
A below) juxtaposed with the exception’s narrow application (Part B below)
demonstrates that this court cannot make the requested exception to the mandate
rule.
A.

The Mandate’s Implicit Ruling
To begin, it would be presumptuous for this court to conclude that the Perry

panel was unaware of the failure of the operative complaint to include a Title VII
7

retaliation claim arising from Knight’s post-lawsuit supervision of Perry and the lack
of tightened argument in the district court as to the factual and legal contours of this
unpleaded claim. More than once, the Eleventh Circuit silently has excused a
claim’s procedural shortcomings in favor of a merits resolution. In Campbell v. Civil
Air Patrol, 138 F. App’x 201 (11th Cir. 2005), for example, the first panel vacated
judgment for the defendants on a Title VII retaliation claim, holding that the trial
evidence did not sustain the defendants’ affirmative defense upon which the jury
verdict rested. Id. at 202. On remand, the district court reinstated judgment for the
defendants, finding that it was powerless to grant the plaintiff relief because he had
failed to make a Rule 50 motion or a new trial motion under Rule 59. See id. On
appeal after remand, the Eleventh Circuit reversed, holding that the district court
impermissibly had violated the mandate. It noted that, although the first panel did
not expressly address the plaintiff’s failure to file Rule 50 and Rule 59 motions, the
defendant had raised the issue in the prior appeal, and, therefore, it was “necessarily
decided by this Court’s decision, at least implicitly.” Id. at 205. The Campbell court
continued: “The disposition of these issues was thus included in this Court’s
mandate and could not be revisited by the district court.” Id.
In another case, which was on appeal after the district court on remand had
refused to enforce the mandate’s directive to permit a party’s intervention as of right,
the Eleventh Circuit explained:

8

Sylva’s failure to file a separate pleading setting forth his claims for
relief could not have justified the district court’s departure from this
court’s decision in Piambino I that Sylva be accorded intervention as a
matter of right. As we have stated, the law of the case doctrine extends
to every issue the reviewing court has decided, both explicitly and by
necessary implication. Although our opinion did not explicitly address
the procedural requirements of Rule 24, its command that Sylva be
allowed to intervene necessarily implied that any procedural
noncompliance with Rule 24 on his part was inconsequential.
Piambino, 757 F.2d at 1119–20; see also id. (explaining that the mandate rule “is
nothing more than a specific application of the law of the case doctrine” and that the
law-of-the-case doctrine applies to issues “decided . . . by necessary implication”).5
Here, in its appellate brief, the ABC Board was quick to point out that Perry
had failed to argue before the district court that Knight’s stepped-up supervision
amounted to a discrete act in retaliation for Perry’s filing of this lawsuit. It also
expressly brought the issue of waiver within the scope of appeal by arguing that
Perry’s failure amounted to a waiver. Perry v. Ala. Alcoholic Beverage Control Bd.,
No. 13-14897-E (11th Cir. Feb. 12, 2014) (Appellee’s Br., at 55). Yet, the panel
bypassed any discussion of the claim’s procedural posture and of the issue of waiver
and instead proceeded directly to the merits of the Title VII retaliation claim. By
doing so, the court finds, in accordance with Campbell and Piambino, that the panel
impliedly excused any procedural deficiencies in Perry’s failure in the district court

5

The court recognizes, as the ABC Board points out, that the defendant in Campbell did
not rely on any of the exceptions to the mandate rule. But Campbell demonstrates why the panel’s
silence conveys an implicit holding. The error-and-injustice exception to the mandate rule is
discussed in the next part.
9

to amend her complaint to include the post-suit retaliatory conduct or to argue a
retaliation theory that provided the best legal fit. Likewise, in permitting the claim
to go forward, the panel implicitly rejected the ABC Board’s argument that Perry
had waived the claim. See United States v. Jordan, 429 F.3d 1032, 1035 (11th Cir.
2005) (“An argument is rejected by necessary implication when the holding stated
or result reached is inconsistent with the argument.”).
The panel surely was cognizant of its authority to refuse to address an issue
that had received no attention in the district court. As to another of Perry’s claims,
the Perry panel applied the doctrine of waiver when it declined to consider her 2012
suspension as evidence of retaliation because she had not “raised [it] before the
district court.” (Doc. # 174, at 23.) Furthermore, if in retrospect, the Perry panel
had had second thoughts about the wisdom of its decision, the ABC Board’s petition
for rehearing would have given it the opportunity to revisit its holding. In its petition,
the ABC Board underscored the Title VII retaliation claim’s omission in the
controlling complaint and reiterated the well-established law that precludes
amendments to a complaint outside the pleadings. However, instead of revisiting
any issues, the Eleventh Circuit summarily denied the petition for rehearing. In sum,
because the ABC Board raised the procedural failings of the Title VII retaliation
claim in its appellate briefing, the court finds that “the disposition of these issues
was . . . included in” the mandate by necessary implication, Campbell, 138 F. App’x

10

at 205, and that the Eleventh Circuit “did not contemplate a subsequent district court
resolution as to the procedural adequacy of” the claim, Piambino, 757 F.2d at 1121.
B.

The Error-and-Injustice Exception to the Mandate Rule
The ABC Board argues that the Eleventh Circuit’s decision—creating a new

Title VII retaliation claim based upon a theory that Perry neither pleaded nor argued
in the district court—is clearly erroneous and manifestly unjust because the holding
ignores settled circuit precedent and is internally inconsistent. The ABC Board’s
argument, although enticing, succumbs to careful examination of the exception’s
narrow application. Before reaching the ABC Board’s arguments, the court sets
forth the principles of law governing the exception’s narrow reach.
1.

The Error-and-Injustice Exception: General Principles of Law

Courts “rarely invoke” the error-and-injustice exception to the mandate rule,
“less the exception swallow the rule.” Jenkins Brick Co. v. Bremer, 321 F.3d 1366,
1370 (11th Cir. 2003) (discussing the “error and injustice” exception to the law-ofthe-case doctrine from which the mandate rule derives). Its application is reserved
for “legal errors,” but not all legal errors will suffice. Id. at 1369. “[O]nly when the
legal error is beyond the scope of reasonable debate should the court disregard the
prior ruling.”

Id. at 1371; Cox Enters., Inc., 794 F.3d at 1272 (framing the

exception’s inquiry as “whether the prior panel’s decision was so clearly erroneous
that we cannot construe it as a reasoned outcome” and describing the inquiry as
“exacting”). The Fifth Circuit has explained the error-and-injustice exception this
11

way: “Mere doubts or disagreement about the wisdom of a prior decision . . . will
not suffice for this exception. To be clearly erroneous, a decision must strike [the
court] as more than just maybe or probably wrong; it must be dead wrong.”
Hopwood v. Texas, 236 F.3d 256, 272–73 (5th Cir. 2000) (citation omitted). Where
there is clear legal error, the error “presents a manifest injustice where [it] would
likely change the outcome of a case.” Moulds v. Bullard, 452 F. App’x 851, 853
(11th Cir. 2011) (“Moulds II”). To illustrate, the Piambino court rejected the
exception’s applicability, holding that its prior decision was “not clearly erroneous”
because the motion to intervene was “timely and had merit, and [the intervenor’s]
failure to file a pleading in the nature of a complaint as required by Rule 24(c) was
inconsequential.” 757 F.2d at 1120.
Few litigants have been able to hurdle the exception’s “high bar.” Cox
Enters., Inc., 794 F.3d at 1272. Two illustrations from this circuit’s precedent
demonstrate what it takes to make the leap. First, in Jenkins Brick Co., the Eleventh
Circuit held that the transferor district court’s implicit ruling that venue was proper
in Alabama (but more convenient in Georgia) was not binding on the transferee
district court in Georgia because the ruling was clearly erroneous and would work a
manifest injustice. See 321 F.3d at 1370 (applying the exception in the context of
the law-of-the-case doctrine). Venue plainly was improper in the federal district
court in Alabama; hence, the ruling was clearly erroneous. The ruling also would
have required the application of Alabama choice-of-law rules and likely Alabama
12

law, which would have validated a non-compete agreement that plainly was contrary
to the fundamental public policy of Georgia. See id. at 1371–73. The choice-of-law
repercussions flowing from the erroneous ruling that venue was proper in Alabama
demonstrated manifest injustice.
A second illustration of the exception’s applicability is found in Moulds II. In
Moulds II, the district court refused to follow the first panel’s mandate that reversed
summary judgment on the inmate’s due process claim. The first panel held that the
inmate’s

“punishment—temporary

loss

of

privileges

and

disciplinary

confinement—did not constitute the deprivation of a constitutionally protected
liberty interest,” but then contradicted itself by concluding that the inmate’s
“procedural due process rights may have been violated by the disciplinary hearing
that led to the imposition of that punishment.” 452 F. App’x at 854. By holding
that, as a threshold matter, “there was no protected liberty interest at stake,” the first
panel clearly erred in simultaneously declaring that the defendants deprived the
inmate of a protected liberty interest. Id. at 855 (citing Wilkinson v. Austin, 545 U.S.
209, 221 (2005) (noting that a court “need reach the question of what process is due
only if the inmates establish a constitutionally protected liberty interest”)).
Moreover, the legal error in the first panel’s ruling “could [have] affect[ed] the case’s
outcome” because, under that ruling, the defendants could have been “found liable
for violating [the inmate’s] due process rights, despite the fact that they did not
deprive [the inmate] of a protected liberty interest.” Id. Hence, manifest injustice
13

was shown, and the error-and-injustice exception justified the district court’s
departure from the mandate.
2. The ABC Board’s Argument that the Panel Decision Violated Clear
Precedent
Although the ABC Board’s frustration is understandable,6 the foregoing
principles demonstrate that this case does not rise to the extraordinary level
necessary to find that the panel decision contains legal error that is “beyond the scope
of reasonable debate,” Jenkins Brick Co., 321 F.3d at 1371; hence, the court need
not consider whether the legal error works a manifest injustice. The court must reach
this conclusion, regardless of whether it agrees with the panel’s decision.
The ABC Board argues that, by permitting Perry to pursue a Title VII
retaliation claim that she did not plead or argue before the district court, the Eleventh
Circuit overlooked basic tenets of settled law. The ABC Board’s well-reasoned brief
methodically sets out principles of law upon which it seems the panel could have
relied to foreclose Perry’s new Title VII retaliation claim. For example, it is wellsettled law in this circuit that a “court is barred from amending a plaintiff’s claim,”
Miccosukee Tribe of Indians of Fla. v. United States, 716 F.3d 535, 559 (11th Cir.
2013), that a plaintiff cannot amend her complaint in a summary judgment brief,
GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1258 n.27 (11th Cir. 2012), and

6

The court empathizes. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331
(11th Cir. 2004) (observing that “[t]oo often our colleagues on the district courts complain that the
appellate cases about which they read were not the cases argued before them” (citation omitted)).
14

that “an issue not raised in the district court and raised for the first time in an appeal
will not be considered by [the Eleventh Circuit],” Access Now, Inc. v. Sw. Airlines
Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (citation omitted). But the panel relied
on none of these tenets.
Although these tenets are sound law, their weight diminishes when considered
in the context of the mandate rule. To the extent that the panel avoided these tenets,
that avoidance does not rise to the level of legal error that is required to justify this
court’s repudiation of the mandate. The principal reason is that these tenets are not
mandatory or jurisdictional, but instead are permissive and help guide a circuit
court’s discretion. See, e.g., United States v. Tremble, 933 F.2d 925, 928 (11th Cir.
1991) (Generally, “an appellate court will not consider a legal issue or theory raised
for the first time on appeal. The decision whether to consider such an argument is
left to the appellate court’s discretion.” (citations omitted)); Access Now, 385 F.3d
at 1332 (“[T]he notion that an appellate court will not consider issues not raised
before the district court is not a jurisdictional limitation but merely a rule of
practice.” (citation and internal quotation marks omitted)). Exercising its discretion,
the Eleventh Circuit has permitted a litigant to pursue a new issue on appeal in
limited circumstances. Access Now, 385 F.3d at 1332 (recognizing its discretionary
authority to depart from the general practice of refusing to consider an issue raised
for the first time on appeal, such as “‘where the interest of substantial justice is at
stake’” or “where the proper resolution is beyond doubt’”) (quoting Wright v. Hanna
15

Steel Corp., 270 F.3d 1336, 1342 (11th Cir. 2001)). Moreover, the Eleventh Circuit
has expressed a greater willingness to consider a new issue on appeal when the case
is at the summary judgment phase, as this case was, and not in a post-trial posture.
See Blue Martini Kendall, LLC v. Miami Dade Cty. Fla., 816 F.3d 1343, 1349 (11th
Cir. 2016) (acknowledging that it has “been more likely to exercise discretionary
jurisdiction over an issue not raised in the district court when . . . the appeal stems
from a summary judgment ruling, not after trial, because a remand from summary
judgment proceedings involves less strain on judicial resources and does not impair
judicial efficiency as dramatically”).
The ABC Board ably has argued, page after page, why a court would be hardpressed to conclude that this case falls within any of the recognized circumstances.
As persuasive as the ABC Board’s arguments are, they cannot overcome the
mandate rule.
Under the circumstances of this case, the court declines to second-guess the
Perry panel’s exercise of its discretionary authority to hear a new Title VII retaliation
claim stemming from Knight’s post-lawsuit supervision. For one thing, the case
came to the panel on a summary judgment ruling, not after trial. For another thing,
the record arguably contains the critical facts to support the claim, and the discovery
phase covered an expansive territory of unpleaded facts. It is conceivable that the
Eleventh Circuit pictured the discovery materials as containing an image of a
controversy focused on a retaliatory switch in supervisors and in supervisory styles
16

that was punishment for Perry’s filing of this lawsuit. It is conceivable also that the
circuit implicitly concluded that the ABC Board garnered sufficient notice of the
claim, even though Perry’s pleadings did not embrace it forthrightly, when the
parties explored its factual predicate during discovery. Whatever its reasoning and
whether this court agrees with that reasoning or not, the panel preferred substance (a
merits decision) over form (rejection of an unpleaded claim), and implicitly excused
Perry’s failure to amend her complaint to include a Title VII retaliation premised on
the retaliatory act of Knight’s “close supervision.” (Doc. # 174, at 20–21.) At
bottom, the panel acted within its prerogative, as the implied ruling originated from
its discretionary authority. It cannot be said that the Perry panel’s consideration of
the unpleaded Title VII retaliation claim, though on life support, was “dead wrong,”
Hopwood, 236 F.3d at 272–73, and “beyond the scope of reasonable debate” so as
to justify this court’s deviation from the mandate rule. Jenkins Brick Co., 321 F.3d
at 1371.
3.
The ABC Board’s Argument that the Panel Decision Rendered
Irreconcilably Inconsistent Rulings
The ABC Board also argues that the Perry panel’s decision contains
irreconcilably inconsistent conclusions of law and erroneous factual findings that
contributed to the legal error. But, in the end, these arguments falter.
To begin, the ABC Board focuses on Knight’s suspension of Perry. It
contends that, on the one hand, the panel declined to categorize the suspension as an
17

adverse employment action because “the issue was not raised before the district
court,” and, alternatively, because the suspension, which occurred seven months
after the filing of Perry’s lawsuit, was too temporally remote to establish causation.
(Doc. # 174, at 23.) Yet, on the other hand, the panel permitted the suspension to
bolster the Title VII retaliation claim arising from Knight’s supervision of Perry and
found the causation element met because “Goolsby placed Perry under Knight’s
supervision the month after she filed her lawsuit.” (Doc. # 174, at 24.) The ABC
Board argues that these rulings “are polar opposites and cannot coexist,” just as
occurred in Moulds II. (Doc. # 185, at 35.) The court disagrees.
As to the surviving Title VII retaliation claim, the panel did not consider the
suspension as a stand-alone act of retaliation (a separate claim that it rejected as
waived). Rather, it appears that the panel considered the suspension as one of several
actions demonstrating that “a reasonable employee would have found [Knight’s
heightened work scrutiny] materially adverse.” Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53, 68 (2006). The suspension plays a different role in a standalone Title VII retaliation claim than it does in a Title VII retaliation claim where
the suspension is part of a series of actions in a scheme designed to eliminate an
employee as punishment for protected activity. See, e.g., EEOC v. Navy Fed. Credit
Union, 424 F.3d 397, 407 (4th Cir. 2005) (finding an actionable Title VII retaliation
claim where “heightened [work] scrutiny” was “part and parcel of [the employer’s]
larger plan” to terminate the employee for retaliatory reasons). The Perry panel was
18

considering separate Title VII retaliation claims that required different proof to
satisfy the adverse employment action element, which dispels the perceived
inconsistency. The different nature of the two claims also explains why the panel
did not use the same events to assess causation. As to the retaliation claim based
upon Knight’s close supervision of Perry, the panel measured the temporal span
between Perry’s filing of this lawsuit and the start of Knight’s supervision (one
month). As to the Title VII retaliation claim based solely on the suspension, the
panel considered the time span between the filing of suit and the date of the
suspension (seven months). For this reason also, Moulds II is distinguishable.
There, the first panel’s holding on one element of the due process claim was
irreconcilable with its holding on another element of the same cause of action. Based
on the foregoing, the inconsistencies here are not irreconcilable to the point of
amounting to legal error that “is beyond the scope of reasonable debate.” Jenkins
Brick Co., 321 F.3d at 1371.
Additionally, the ABC Board points out that, contrary to the panel’s
discussion, it was Goolsby, not Knight, who issued Perry a written reprimand and
that, therefore, the reprimand cannot undergird the Title VII retaliation claim based
on Knight’s alleged increased scrutiny of Perry’s work. (See Doc. # 174, at 24
(suggesting that Knight issued Perry a written reprimand).) Although it appears that
the ABC Board is right about the factual error, the panel based the Title VII

19

retaliation claim on other disciplinary actions as well.7 The ABC Board, no doubt,
has raised a doubt about the correctness of the ruling, but “mere doubts” are not
sufficient reason for this court to disregard the mandate. Hopwood, 236 F.3d at 272.
C.

Summary Judgment and Discovery
The ABC Board contends that it is entitled to summary judgment on the

remanded Title VII retaliation claim because the claim was “never a part of this
lawsuit.” (Doc. # 185, at 39.) But that argument has been rejected, and, therefore,
the ABC Board’s argument fails at this juncture also. The renewed motion for
summary judgment will be denied.
Alternatively, the ABC Board requests additional discovery on the remanded
Title VII retaliation claim. The ABC Board contends that, because this claim was
not pleaded, it did not fully explore the claim during discovery. In the exercise of
discretion, the court will permit limited discovery on this claim to assist in trial
preparation.
III. CONCLUSION
Based on the foregoing, it is ORDERED as follows:
(1)

Defendant’s motion for relief from mandate (Doc. # 185) is DENIED;

Describing the “disciplinary activity,” the Eleventh Circuit pointed out that Knight had
counseled Perry concerning her “punctuality, cooperation with coworkers, and compliance with
the ABC Board’s rules,” and that Perry had received a written reprimand and a suspension (the
latter two of which the circuit said were “materially adverse actions.”). (Doc. # 174, at 24–25.)
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(2)

Defendant’s renewed motion for summary judgment (Doc. # 185) is

DENIED;
(3)

Defendant’s alternative motion for discovery (Doc. # 185) is

GRANTED;
(4)

This case is set for trial on the term of court commencing September

18, 2017, and the pretrial conference is set on June 29, 2017;
(5)

The parties shall file a joint report on or before April 14, 2017,

containing their discovery plan.
DONE this 30th day of March, 2017.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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